Nova Scotia discriminated against people with disabilities, rights hearing told

Beth MacLean, the woman at the centre of a human rights case dealing with persons with disabilities and their attempts to move out of institutions, testifies at the inquiry in Halifax on Tuesday, March 6, 2018. Lawyers for people with disabilities made final arguments Tuesday that keeping people with intellectual disabilities in a Nova Scotia hospital ward for over a decade, rather than a community home, breached basic human rights most citizens enjoy.Darren Calabrese / THE CANADIAN PRESS

HALIFAX — Lawyers for people with disabilities argued Tuesday that keeping people with intellectual disabilities in a Nova Scotia hospital ward for over a decade — rather than a community home — breached basic human rights most citizens enjoy.

It was the final day of a marathon human rights hearing in Halifax, attended by 80 people in a packed hotel meeting room and being monitored by advocates for people with disabilities across the country.

Beth MacLean and Joseph Delaney have testified the Department of Community Services violated the province’s Human Rights Act by forcing them to remain at the Emerald Hall psychiatric ward in Halifax even though they had been medically discharged.

The human rights complaint they submitted in 2014 argued they should have been provided housing in a “small options” home after psychiatrists medically discharged them.

Small-options homes are small housing units, with usually three or four residents, where day-to-day support is provided to people with intellectual disabilities.

In his closing statements, the complainants’ lawyer, Vince Calderhead, said there is enough evidence to find discrimination against people with disabilities occurred because the province deliberately didn’t provide this housing.

“It’s about holding governments accountable for their actions and their inactions. It’s about accountability,” he told the inquiry board chair, J. Walter Thompson.

At the core of Calderhead’s legal argument is a comparison with welfare services, where citizens in need can usually obtain housing in the community as a right.

He contrasted the treatment of people without disabilities receiving welfare or public housing as a right against the testimony that MacLean and Delaney had languished in the psychiatric hospital for years as the Department of Community Services told staff and family they had no appropriate housing for them in the community.

Calderhead told the inquiry chairman this was an instance of government targeting a specific group in society for inferior treatment.

In the case of MacLean, that began when she was placed as a girl in an adult institution in the Annapolis Valley at the age of 14.

“Restricting her to a congregate care, institutionalized setting between 1986 and 2000 was discriminatory, and that would be appropriate for everyone, particularly a child, a female child,” argued the lawyer.

Once MacLean and Delaney were in the psychiatric hospital, in a special unit intended for people with combinations of mental illness and intellectual disabilities, it seemed they couldn’t get out, the human rights inquiry has heard.

“I can’t say that nobody who hears about this case isn’t stunned, isn’t gobsmacked at the prospect of someone sitting for 16 or 17 years in a hospital where she didn’t need to be,” Calderhead said of MacLean’s case.

Calderhead also cited the case of Sheila Livingstone, a woman with disabilities who died while the case wound its way through various delays.

He said it was discriminatory that she spent years at the psychiatric hospital, only to be moved to housing hundreds of kilometres from her closest family after suffering repeated abuse.

Calderhead said one sign the province has always known that Delaney and MacLean were capable of living outside of the hospital is that it has recently moved to place them in small options homes, after the human rights case began.

He and Claire McNeil, the lawyer for the Disability Rights Coalition, are relying heavily on a 2012 landmark Supreme Court of Canada decision that ruled that Jeffrey Moore, a British Columbia student with disabilities, was entitled to receive special accommodation to access and benefit from public education.

However, Thompson raised a question during McNeil’s final arguments, asking her if there isn’t a difference between the two cases because Moore was refused almost all service, while in the Nova Scotia case the complainants are arguing that they didn’t receive a proper quality of public service.

McNeil responded that in fact the people with disabilities hadn’t received “meaningful services” from the province when waiting lists last for more than a decade.

The lack of small options housing and the crucial support systems stemmed back to the 1990s, when changes in federal funding prompted the province to put a moratorium on small options home, the hearing has heard.

The moratorium was a conscious decision by the provincial government, under various political parties, that always posed problems to human rights, Calderhead argued.

In their closing submissions, two lawyers with the Nova Scotia Human Rights Commission supported the complaint, saying there is enough evidence to find that discrimination against people with disabilities occurred.

They rejected the government’s argument that the needs of people with disabilities weren’t even in the same category as people on welfare — and shouldn’t be compared.

Rather, the commission lawyers sided with the view that in general people on welfare and people with disabilities in need of housing and support were people “in need.”

They wrote that while people with disabilities may have needs that are “more complicated and costly,” the assistance to the latter group shouldn’t suffer just because of the complexity involved.

In its written closing argument, the province says the board is getting into areas that should be decided at the ballot box or government policy rooms.

Its lawyers said while the province is embarking on reforms, providing housing to people with disabilities in hospitals or hundreds of kilometres from the person’s family aren’t acts of discrimination.

“At what point does the failure to achieve the ideal amount to discrimination,” the province’s brief asks.

The province’s lawyers also point out that people who are on welfare may have waits and have to go to housing out of their preferred areas.

“The average time spent on the waitlist is 2.7 years, which is quite close to the average wait list time of 2.94 years for Community Services residential supports,” said their brief.

If Thompson rules in favour of the applicants, the case would still go to a second set of hearings, where the province can argue that accommodating the complainants’ requests would be unreasonably difficult.

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